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Hello, I am seeking your guidance regarding a recent probationary termination in British Columbia and an allegation of wrongful dismissal raised by the former employee.
Background summary:The employee was terminated within their probationary period.
Throughout their employment, the employee demonstrated ongoing attendance, absenteeism, and lack‑of‑communication issues.
The employee acknowledged and signed off on our Attendance and Absenteeism Policy.
Attendance concerns were addressed verbally, however the issues persisted.
We subsequently issued a written warning clearly stating that continued attendance and communication issues could result in termination.
Despite this, the behaviour continued.Workplace injury / accommodation:
The employee later reported a minor workplace injury.
No medical documentation was provided, nor confirmation of work restrictions.
We promptly offered modified duties, which were communicated and documented through multiple channels.
The employee did not attend the modified duties, nor did they respond to repeated attempts at communication.
Two days later, the employee called in, at which time we proceeded with termination.Termination details:
The termination was conducted without cause during the probationary period.
We are paying the employee for the day of termination and issuing final pay within 48 hours, in compliance with the BC Employment Standards Act.Post‑termination allegation:
The employee has since alleged the termination constitutes wrongful dismissal, asserting they were recovering from their workplace injury and claiming they were not offered modified duties.
This assertion is inaccurate and contradicted by our documentation showing:Modified duties were offered
The employee did not attend
The employee did not respond to communications
No medical information or confirmation of work restrictions was provided.Proposed response:
I intend to respond to the employee noting that:The termination was without cause, lawful, and occurred during probation.
The decision was not related to any reported workplace injury.
Modified duties were offered and documented.
The employee did not attend modified work nor respond to communication attempts.
No medical documentation was provided during the relevant period.My question:
From a risk‑management and liability standpoint, is there anything you recommend adding to or removing from this response? Are there any particular wording considerations or omissions that would better limit exposure, particularly in relation to WorkSafeBC or human rights considerations?
Thank you in advance for your guidance.Important note: This situation involves potential exposure under BC employment law, human rights legislation, and WorkSafeBC prohibited action provisions. While the above guidance reflects best practices, you should consider having your response reviewed by an HR professional or employment lawyer to ensure it aligns with current case law and minimizes organizational risk.
You are in a generally defensible position, particularly given that the termination occurred during the probationary period, performance concerns predated the injury, and you made documented efforts to offer modified duties and communicate with the employee. From a risk-management standpoint, the primary areas of exposure are human rights (disability discrimination) and potential WorkSafeBC prohibited action claims, so your response should be carefully framed to show the decision was unrelated to the reported injury while avoiding overly definitive or defensive language.
It is important to maintain the position that this was a without-cause probationary termination, and avoid language that could be interpreted as justifying termination for cause. Performance and attendance concerns can be referenced as context, but the core message should be that the employment relationship was not progressing satisfactorily during probation. Overemphasizing misconduct or non-compliance may unintentionally invite a higher legal threshold or dispute.
When addressing the injury, use neutral and measured language that demonstrates reasonable efforts to accommodate without appearing dismissive. Emphasize that modified duties were offered and that attempts were made to communicate, while noting that no medical information was received to guide accommodation. Avoid framing this as the employee’s failure; instead, position it as a lack of information and engagement that limited your ability to proceed.
Keep the response concise, factual, and non-inflammatory. Avoid overly detailed timelines, emotionally charged language, or statements that could be perceived as argumentative. The tone should reflect a closed, professional position that does not invite further debate, while clearly documenting that the organization acted reasonably and in compliance with its obligations.
Overall, your approach is sound; the key refinement is ensuring the response is carefully worded to reinforce a probationary, without-cause decision, while demonstrating good-faith efforts around accommodation and minimizing risk related to human rights or WorkSafeBC considerations.
-HRInsider Staff
Thank you! As always, I very much appreciate your guidance with these matters.
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